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History of Bail

Every so often, an individual may find themselves on the wrong side of the law. When this happens, the individual may find that they can pay what is known as a “bail” or “bond,” a monetary sum paid to the courts in exchange for the defendant’s temporary release.

Should they be able to afford this bail, they may be released pending trial. Should they find themselves without the funds necessary to procure their release, as is often the case, there exists a profession knows as the bail bonds profession. Bail bondsmen operate by acting as a surety, or responsible party, and placing the bail in exchange for a percentage of the needed bond. The bail bond process serves a necessary function indeed, but why does it exist?

Bail Bond System

The bail bond system as Americans know it was modeled after the system developed during medieval times in England. During this time period, few towns had magistrates (what Americans know as judges), which could lead to the impractical issue of defendants imprisoned for months while awaiting trial. If released before trial, however, it was often nearly impossible to get the defendants to return to trial. Criminals were often motivated to leave town before trial due to the often brutal nature of the punishments that awaited them should they be found guilty. To counteract this issue, the English developed a system in which a significant sum of money would be paid by the defendant and held by the courts; should the defendant fail to appear for trial, the sum was forfeited to the courts. Thus, the bail bonds process was born.

In 1677, the English parliament passed what was called the Habeas Corpus Act, which stated that judges would set the terms of bail. The English Bill of Rights in 1689 posed restrictions on the amount of bail to be set, which later inspired the Virginia state constitution and the Eighth Amendment to the United States Constitution. This amendment states, in part, that any persons under arrest must “be be informed of the nature and cause of the accusation” against them. It further allows the accused individual to demand bail if the offense against them is a bailable offense.

Judiciary Act of 1789

Although it was the English Bill of Rights and the Habeas Corpus Act that gave rise to the inspiration behind the American bail system, it has its roots most firmly planted in the Judiciary Act of 1789. This Act stated that all non-capital offenses (or, all offenses that do not carry the death penalty) were bailable. In the event of a capital offense, bail was to be set at the judge’s discretion. Similar to the aforementioned Bill of Rights, though, the Judiciary Act placed limits on the amount of bail allowed.

American bail laws remained largely unchanged for most of the next two hundred years, until 1966. It was at this time that the Bail Reform Act was established. Although the Eighth Amendment prohibited excessive bail, it did not necessarily grant the right of a defendant to bail under the Constitution. The Bail Reform Act of 1966 changed this by giving a defendant facing non-capital charges a statutory right, or a right under federal statute, to be released, pending trial, on his or her own personal recognizance or on personal bond unless they are deemed to be a flight risk. Should the defendant be deemed a flight risk, the acting judicial officer must select an alternative from a list of conditions, ranging from restrictions on travel to regular check ins with law enforcement. This is known as conditional bail. Defendants facing capital charges, or those who have been tried and convicted but are awaiting sentencing or appeal, are to be released unless the judicial official deems the individual to be a flight risk regardless of conditions attached to their release. In non-capital cases, the judge is not permitted to consider the defendant’s potential threat to the community as part of the bail process; however, capital offenses and post-conviction hearings do allow for this consideration.

As more than half of defendants charged with a felony are unable to post bail on their own, and the numbers are even worse for less well-off defendants, it is safe to say the bail bonds process is a necessary part of the American legal system. This system, created over seven hundred years ago, has certainly been put to good use.

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